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FR.OTEST 



OF THE 



Cherokee Nation 



against the passage of 
House Bill (6309): 

"To provide further security to persons and property in 
the Indian Territory and for other purposes." 



The bill violates treaty obligations, destroys vested rights 
and is clearly unconstitutional. 



By transfer 

DEC 11 Iii06 



- Washington, D. C, Ifarch 0th, 1S06. 
To THE Senate and House of Representatives of 
THE United States Congress : 

We respectfully request permission to l>riefly call your 
attention to our objections to House Bill 6309: "To pro-, 
vide further security to persons and property in the In- 
dian Territory, and for other purposes." 

section first indefinite. 

Section first of the bill is exceedingly vague and indef- 
inite, and we are at a loss to know what jurisdiction is in- 
tended to be conferred. A law should be so expressed as 
to be capable of but one construction, and more particu- 
larly when Indians, unaccustomed to the technicalities of 
the law, are to be affected by its provisions. This section, 
however, provides that the Federal Courts in the Indian 
Territory shall have exclusive jurisdiction, both in law" 
and equity, over all causes, controversies, and suits con- 
cerning the tribal lands and other tribal property of either 
of the live civilized tribes and for the purpose of such 
suits they may be made parties plaintiff or defendant, 

1. No non-citizen in the Cherokee Nation has or could 
have any right or interest, either legal or equitable, in the 
tribal land or common property of that Nation for the 
protection of which he could desire to institute proceed- 
ings in the Federal Courts for the reason that the land for 
a consideration was patented in 1838 to the Cherokee Na- 
tion, in 1839 the constitution of the Cherokee Nation was 
adopted which provides: "The lands of the Cherokee Na- 
tion shall remain common property'' (sec. 2, art. 1), and 
laws have always been in force prohil)itmg the sale or 
lease of real estate to non-citizens. If any such person 



has an alleged claim he knowingly fraudulently acquired 
it in violation of our constitution and laws, and no one 
should be permitted to take advantage of his own wrong. 
This section evidently cannot refer to the "intruder'" 
class as section -i provides for them. 

2. If this section applies to citizens as well it violates 
the sacred obligations of the Government of the United 
States made to a trusting dependent Nation for valuable 
considerations. 

Article 5 of the Treaty of 1835 provides: "The United 
States here])y covenant and agree that the lands ceded to 
the Cherokee Nation in the foreooino^ article shall in no 
future time, in'dhoid theii- conxent^ be included within 
the territorial limits or jurisdiction of an}' State or Terri- 
tory. But they shall secure to the Cherokee Nation the 
right by their National Councils to make and carrii into 
effect all such laws as the}^ may deem necessary for the 
Government and protection of the persons and property 
within their own country belonging to their people or 
such persons as have connected themselves with them." 

Article 13 treaty of 1866 reads: "The Cherokees also 
agree that a court or courts may be established by the 
United States in said Territory, with such jurisdiction and 
organized in such manner as may be prescribed by law; 
Provided, That the judicial tribunals of the Nation shall 
be allowed to retain exclusive jurisdiction in all civil and 
criminal cases arising within their country in which mem- 
bers of the Nation, by nativity or adoption, shall ])e the 
only parties, or where the cause of action shall arise in 
the Cherokee Nation, except as otherwise provided in this 
treaty. ' ' 

3. This provision would encourage endless vexatious 
litigation which is against the public policy of any gov- 
ernment and would prevent the allotment of the lands 
when desired. 



4. If this section intends to give the courts jurisdiction 
to partition the lands, aside from being in violation of the 
treaties and unconstitutional, it is impracticable. It 
would necessitate a topographical survey, a reservation of 
town sites, mineral lands, etc., an appraisal of the lands, 
the taking of a census, etc. , etc. , which scientific experts 
the court has not at its command and if it had would re- 
quire five years at least and cost fifty times the value of 
the land. 

SECTION 2 DESTROYS SELF-GOVERNMENT. 

Section 2 of the bill takes away all the jurisdiction from 
the tribal courts as between citizens of the respective 
tribes and confers it upon the Federal Courts. 

1. There could not be a more direct and flagrant viola- 
tion of the solemn promises and plighted faith of the 
United States as contained in the above quotations from 
the Treaties of 1835 and 1866. It would not only result 
in taking the jurisdiction from the tribal courts but it de- 
stroys their governments as well. Without a jucliciary 
to interpret and enforce law a legislature would be a farce 
and an executive officer a painful reminder of false prom- 
ises and broken pledges. 

2. The enactment of this section would result in rob- 
bing the full-blood, whom it is the avowed intention of 
Congress to protect. He knows nothing of civil law or 
federal procedure. Many do not understand the English 
language, and having inherited the idea as well as adapted 
themselves to it of common property they would abandon 
property rightfully theirs and move over with a neighbor 
rather than contend in a court to which they are strangers. 
This is no mere assertion ]:>ut a part of their past history. 

3. If our people are satisfied with their own judiciary, 
why not let them alone '{ Their laws are printed in both 
languages so that they can read and understand them. 



6 ■ 

SECTION 3. 

Section 3 re(|iiires the President's signature before .any 
act })assed by the legislatures of the Five Tribes shali be- 
come a law. 

1. As above observed, if this l)ill becomes a law the 
tribal courts will have no jurisdiction and will be unneces- 
sary to pass any more laws. 

2. The President cannot have the time with the great 
duties to perform which devolve on him during his four 
years' incumbency in the executive oflBce to give that per- 
sonal attention to the Five Tribes which the enactment of 
this section would require and would necessitate the refer- 
ence of those laws to some department clerk for his opin- 
ion, who in fact would be oar Chief Executive. 

3. Congress could then with impunity pass any law de- 
stroying vested rights, as the tribes would have no means 
of appropriating money to test their constitutionality, as 
no President would sign a tribal law intended to test an 
Act of Congress which he had previously approved. 

CHEROKEE CITIZENSHIP. 

Section 4 provides that the present Dawes Commission 
or their successors shall constitute a tribunal for the hear- 
ing of all applieants of citizenship in the Five Tribes and 
the roll made by them forced upon the respective tribes. 

1. The mamfestly unjust severe reports made by this 
Commission and thsir abusive attacks» before the commit- 
tee have aroused such a strono- feelinof against these men 
that their usefulness in the Territory would be wholly de- 
stroyed and the relations between them and the Indians 
wjuld be so strained as to result in an e.r j/arte'henring of 
these cases and a consequent loss to the several tribes. 

i. All the i)ledges preliminary to, both verl^al and 
written, together with the preamble and text of the Treaty 
of 1835 secures to the Cherokee Nation the rig-ht of self- 



government with the power to make and execute such 
laws as necessary for the government and protection of 
their citizens and property and such persons as have con- 
nected themselves with them. 

Article 6 of said treaty and articles 26 and 27 of the 
Treaty of 1866 obligates the United States to remove all 
trespassers or unauthorized persons from their country. 
These treaties and the right of the Cherokee Nation to 
determine who are its citizens were judicially interpreted 
and the Supreme Court decided; "If Indians in that State 
or any other State * * * * wish to enjoy the bene- 
fits of the common property of the Cherokee Nation, in 
whatever form it may exist, they must, as held by the 
Court of Claims, comply with the constitution and laws 
of the Cherokee Nation and be readmitted to citizenship 
as there provided. * *** **** Those 
funds and that property were dedicated by the constitu- 
tion of the Cherokees, and were intended by the treaties 
with the United States for the benefit of the united Na- 
tion, and not in any respect for those who had separated 
from it and have become aliens to their Nation." (117 
U. S. 388-311.) 

Section 1, Article 2, of the agreement between the 
United States and the Cherokee Nation, ratified by an Act 
of Congress, approved March 3, 1893, further confirmed 
this right to the Cherokee Nation in the following positive 
language : ■* 

"That all persons now resident, or may hereafter be- 
come resident, in the Cherokee Nation, and who are not 
recognized as citizens of the Cherokee Nation by the con- 
stituted authorities thereof, and who are not in the em- 
ployment of any citizen thereof in conformity with the 
laws thereof, or in the employment of the United States 
Government, and all citizens of the United States who are 
not resident in the Cherokee Nation under previous treaties 



or the Acts of Congress, shall be held and deemed to be 
intruders and unauthorized persons within the intent and 
meaning of the treaty of 1835, and sections 26 and 27 of 
the treaty of July 10, 1866, and shall, together with their 
personal effects, be removed without delay from the limits 
of said nation by the United States, as trespassers, upon 
demand of the principal chief of the Cherokee Nation.'" 

By this agreement, of which the section just quoted is 
a part, the Cherokees sold to the United States more than 
one-half of their landed possessions, and the consideration 
for this relinquishment was an accounting with the United 
States to determine the amount of moneys wrongfully re- 
tained, the removal of these trespassers or "intruders," 
and the money consideration, which was not one-half as 
much as we had been offered. The controlling considera- 
tion of our })eople was the removal of this class of people. 

3. From time to time during the past twenty-tive years 
the National Council of the Cherokee Nation has estab- 
lished tribunals for the trial of all applicants for readmis- 
sion to citizenship. These were regularly constituted 
courts, before which testimony could be and was taken, 
where all parties were represented by attorneys, and writ- 
ten opinions rendered and recorded. These records will 
show that these trespassers were accorded a fair trial and 
were duly rejected. If, as above shown, these courts had 
final jurisdiction to try and determine these cases, they 
are re» judicata. Cooley's Constitutif5nal Limitation (pages 
58-9) says : "A decision once made in a particular con- 
troversy b}^ the highest court empowered to pass upon it 
is conclusive upon the parties to the litigation. * * * 
The matter in dispute has become re^ judicata ; a thing 
definitely settled by a judicial decision ; and the judg- 
ment of the court imports absolute verity. Whatever 
the question involved — whether the interpretation of a 
private contract, the legality of an individual act, or the 



validity of a legislative enactment — the rule of finality is 
the same. The controversy has been adjudged, and, once 
finally passed upon, it is never to be renewed. ' ' 7 Cranch, 
565; 16 How., 114:; 7 Wall., 82; 20 Wall., 137; 23 
Wall., 458 ; 20 Ark., 85. 

4. No one can demand an admission to citizenship as a 
matter of right, either legal or equitable, but it is only a 
matter of grace on part of the Cherokee Nation. All 
Cherokees east of the Mississippi at the time of their re- 
moval west who were identified Avith them, and as a con- 
sequence entitled to anything because of his blood interest, 
removed w^est with the tribe, and are living with them, 
enjoying equal participation in the lands and funds, or they 
took their pro rata share in the Eastern States, and cannot 
after disposing of it come to the Cherokee Nation and de- 
mand a second apportionment of the beautiful country, 
made so from wild forests by the privations of other 
Cherokees. 

5, This right is inseparable from the right to the use of 
the soil, because upon favorable determination of an appli- 
cant it entitles him to the same, hence if a right to use 
and control the land patented to us is a vested right the 
right to re-admission to citizenship must be, and Congress 
cannot constitutionally take it away. 

ALLOTMENT OF LANDS. 

Section 5 provides* that after the roll is completed in 
accordance with the last section, the Commission shall 
proceed to the allotment of the exclusive use and benefit 
all the lands except town sites, mineral lands, and those 
incapable of division. Lands heretofore disposed of are 
also reserved. 

1. How can you divest one of the use of lands patented 
to the tribe, legally acquired, when the laws of the re- 
spective nations under which he acquired it were author- 



10 

ized by the treaties with the United States ? Congress hks 
no more right to force a division of the use of the lands 
of the Cherokees than it has to compel heirs to an estate 
to individualize their interest or the share-holders of a cor- 
poration to divide their stock. This is not a political I)ut 
clearly a property right, for if you can allot the use of 
the land, unquestionably you have the authority to indi- 
vidualize the fee. Congress has no constitutional right to 
interfere with rights under treaties, except in cases purely 
political. Holden r.s. Joy, 17 Wall., 247 ; Wilson i^s. 
Wall, 6 Wall., 89; Insurance (Company i'.s\ Carter, 1 
Peters, 542 ; Doe vs. Wilson, 23 Howard, 461 ; Mitchell 
vs. United States, 9 Peters, 749 ; The Kansas Indians, '5 
Wallace, 737 ; 2 Story on Constitution, Sec. 1508 ; Foster 
vs. Neilson, 2 Peters, 254 ; Crews vs. Burchum, 1 Black., 
356; Worcester I'.v. Georgia, 6 Peters, 562; Blair vs.' 
Pathkiller, 2 Yeager, 407 ; Harris vs. Burnett, 4 Black- 
ford, 369 ; United States vs. Ben Reese, 5 Din., 405. 

In 99 U. S. 719 the court said : "No change can be 
made in the title created by the grant of the lands without 
the consent of the corporotion. " 

2. Article I., Section 2, of the Constitution of the 
Cherokee Nation provides: " The lands of the Cherokee 
Nation shall remain common property ; but the improve- 
ments made thereon, and in the possession of the citizens 
of the Nation, are the exclusive and indefeasilde ])roperty 
of the citizens respectively who made, or ma}- rightfully 
be in possession of them.'' In pursuance of this section 
and by authority of Article 5, Treaty 1835, the Cherokee 
Nation has passed laws regulating the settlement of the 
public domain. Under these laws improvements with 
irregular boundaries have been made ; this division will 
necessitate the taking of land in squares, which will force 
the legal and rightful occupant of improvements, honestly 
acquired, to abandon the same without a trial or compeur 



11 

sation. Will anyone contend that this is constitutional ? 
3. This is impractical, exce})t l)v mutual consent. Laws 
will have to be enacted permittino- exchanges of improve- 
ments, so as to shape up tlie holdings in accordance with 
the survey; an appraisement will have to be made to 
e(|uitably (Hvide it ; there are public buildings that should 
hi utilized, and lands reserved for school and county pur- 
. poses. If this is now attempted to be forced on those 
tribes, the power for years will be contested in the courts. 

TOWN SITES. 

Sections 6, 7, and 13 are engaged in the town site in- 
dustry. Section 6 authorizes the commissioners to cause 
to be surveyed and laid out town sites at such places as 
they ma}' deem expedient and necessary, with streets and 
alleys, &c., and requires the tiling of a plat of each town 
in the clerk's office of the United States court in the dis- 
trict. Section T provides for their incorporation under 
the laws of Arkansas, and the election of municipal 
officers. Section 13 directs the appointment of a com- 
mission to appraise these lots in the actual or constructive 
possession of anyone, citizen or non-citizen, and gives said 
claimant' six months to deposit with the assistant treasurer 
at St. Louis, Mo. , the appraised value, and the consent of 
the United States is given to the tribes to give a fee simple 
title to these claimants. 

1. The unlimited authority conferred on the commission 
by section 6 is most dangerous and antagonistic to a re- 
publican form of government. It places it within the 
discretion of the commission to lay off any or all of the 
lands of the Five Tribes for town sites. 

Section 13 is clearly unconstitutional in that it divests 
the several tribes of the use and occupancy of lands 
bought and patented to them — undoubtedly vested rights 
— and grants the same to any claimant, citizen or non 



12 

citizen, upon the tender of the appraised vahie. Without 
any trial or " due process of law," it authorizes the con- 
fiscation of property for private use. If in this manner 
a single lot can be taken, those tribes are not secure under 
their patents in the possession of a single acre of land. 
The right of eminent domain implies that the, purpose for 
which it may be exercised must not be a mere private one, 
and Congress has no power to take the property of one 
individual and pass it over to another, even for a full com- 
pensation, unless it is for a public purpose. "Nor 
would it be material to inquire what qimntum of interest 
would pass from him ; it would be sufficient that some 
interest, the appropriation detracted from his right and 
authority, and Interfered with his eicclmive possession as 
owner, had been taken against his will ; and if taken for 
a purely private purpose, it would be unlawful. ' ' Cooley 's 
Constitutional Limitations, pages 657-8 ; -i Hill, 140 • 2 
Swan, 540; 5 Barb., 474; 34"Ala., 311 ; 1 Penn St 
309 ; 39 111., 110 ; 24 Wis., 89 ; 44 Vt, 648 ; 72 Ind ' 
515. 

Public use implies a possession, occupation, and enjoy- 
ment of the land by the public at large or by public 
agencies. Id., page 659 ; 19 Wend., 9-60. 

3. A non-citizen could not acquire any claim, legal or 
equitable, to the occupancy or use of town lots or im- 
provements made thereon in the Cherokee Nation. Our 
constitution (Art. 1, Sec. 2) retains the title to the land 
in the Nation, forbids the transfer of improvements to 
non-citizens, and the laws prohibit the leasing of them. 
No one but a citizen is permitted to carry on a mercantile 
business of any kind in the Cherokee Nation, and before 
license is granted the applicant must under oath state the 
members of the firm and that all are citizens of the Na- 
tion. An exception to this is made under treaty of Cana- 



13 

dian district, where some four or five transact lousiness, 
but do not own or claim any land or improvements. 

4. The Cherokee Nation many years ago enacted ade- 
quate town-site laws, copies of which are hereto appended. 
Under these laws all the important towns along the several 
railroads, and Tahle(]uah, the only inland town of any 
size, have been surveyed, with plats filed in the P'iXecutive 
Office, showing the number, size, and location of lots, also 
the streets, alleys, and public buildings. The occupancy 
of these lots have been sold, after pu))lic notice having 
been given by the proper officer of the Nation, to the 
highest citizen hidder from time to time, the proceeds 
turned into the treasury for the benefit of the whole tribe, 
and an occupant title given to the purchaser. As we con- 
strue it, this character of title is all our constitution au- 
thorizes our legislature to give. Upon these lots many 
costly business houses and beautiful residences have been 
erected by the citizens of the Nation. 

The act incorporating the town of Ft. Gibson has been 
extended all over the principal towns of the Cherokee 
Nation. They have regular municipal governments, con- 
sisting of a mayor, aldermen, city police, and have printed 
ordinances for the protection of persons and property, 
which are rigidly enforced, and those towns, in conse- 
quence thereof, as a rule are as quiet and orderly as any 
in the surrounding States. Certainly, then, the town-site 
provisions of this bill are not necessary for the Cherokee 
Nation, and we take it that no one will seriously contend 
that the rightful occupants of these lots can or should be 
forced to again purchase the privilege of occupying them. 

EXCESSIVE HOLDINGS A CRIME. 

Section eight makes it unlawful for any one to demand, 
or pay rents or royalty on any minerals, timber, or lands, 
in excess of the pro rata part of himself and each member 



14 

of his family to the individual citizen, bat must he paid 
to the assistant treasurer of the United States. at St. Louis, 
-Mo. 

Section nine prohibits the incU)sing or hokling posses- 
sion of any greater amount of lands or other tribal prop- 
erty than his just and reasonable share and that of his 
wife and minor children and gives him six months to dis- 
pose of the excess. 

Section ten prescribes the penalty for the violation of 
the two preceding sections which is a fine of not less than 
one hundred dollars daily and the forfeiture of the pos- 
session of the property. 

1. If our previous contention be true, that the treaties 
with the United States secured to the Cherokee Nation 
local self-government, the right "to make and carry into 
effect all such laws as they may deem necessary for the 
government of persons and property within their own 
country," none of these leases mineral or otherwise legal- 
ly made in accordance with the laws of the Cherokee Na- 
tion can be interfered with by an act of Congress. Under 
these lavvs contracts have been made and money invested 
and Congress has no constitutional rigrht to abroj^ate these 
contracts or intefere with the rights already acquired. 

2. The Court of Claims, in speaking of the government 
of the Cherokee Nation, held: "It has its territorial pos- 
sessions and boundaries, its constitution (very much like 
the Constitution of the United States), its laws, its execu- 
tive, legislative, and judicial departments, with none of 
which can any State or the United States interfere (20th 
Court of Claims, 449— Affirmed 117 U. S., 288). 

The Cherokee Nation reserved the rig^ht in its constitu- 
tion (art. 1, sec. 2) to regulate and prevent the monopoly 
of the public domain through legislative enactment, but 
until that is done the same section of the constitution de- 
clares the improvements rightfully in the possession of 



15 

the citizen to be his own indefeasaBle property. We sub- 
mit that Cono;ress has no more power to confiscate these 
improvements legally acquired, whether by la})or or pur 
chase, than it has to arbitrarily seize and destroy the 
property belonging to a citizen of any State. 

3. This property is confiscated without "due process 
of law," as guaranteed by the Constitution. Mr. Web- 
ster gives the generally accepted definition of these 
words in the Dartmouth College Case: "By the law of 
the land (due process oi law) is most clearly intended the 
general law; a law^ which hears before it condemns; which 
proceeds upon inquiry, and renders judgment only after 
trial." (-i Wheat., 519.) Instead of being deprived of 
the use by a judicial tribunal it is done by an Act of 
Congress, and immediately upon the passage it is a crim- 
inal offence to longer retain possession. 

4. Section 9 makes the retention of an unascertainable 
amount of land or common property a violation of law. 
The just and reasonable share of each is not only an un- 
determined quantity, but as above observed it will take 
several years of scientific work to ascertain it definitely. 
In the meantime the Indian is deprived of his property, 
is out on bail, pays his fine, or goes to jail. 

Section 1 1 is an unjust refiection on the treasurer of the 
Nation. He is required and gives an approved bond in 
double the sum of money at any time in his possession 
for the honest and faithful performance of his duties. It 
can be truly said to the credit of the Cherokee Nation 
that in all of its history it never had a defaulting treas- 
urer, but annually and at the expiration of their terms of 
office each of them made satisfactory settlements. 

2. A per capita disbursement of money under the di- 
rection of the Interior Department necessarily implies the 
taking of a census and the determination by that Depart- 



16 

merit of questions of citizenship against which for reasons 
heretofore assigned we vigorously protest. 

The remaining section, twelve, only provides for the ap- 
appointment of such assistants as may be necessary for 
the performance of the duties as defined in the other sec- 
tions of the l)ill. 

CONCLUSION. 

In conclusion you ask the Cherokee Nation to allot its 
lands in severalitv, change its form of o;overnment, and 
ultimately accept statehood. To these propositions the 
National Council has courteously replied at length. In 
addition to the money consideration in the agreement rati- 
fied March 3d, 1893, between our Nation and the United 
States, we were promised a full and complete accovmting 
to ascertain what may be due under past treaties, and, if 
any, an appropriation of the same by the next Congress, 
and the s})eedy removal of all unauthorized persons 
as determined by the Cherokee authorities, from the 
Cherokee Nation. Neitlier of these two latter con- 
siderations have been complied with and our people are 
very reluctant to enter into further negotiations until all ex- 
isting pledges have been fulfilled. Pay the Nation the 
a aount found due under the above Act, remove the "In- 
truders'" as therein specified, and place the Cherokees in 
possession of all their lands, so that they can definitely 
determine the share of each, and we will then be in a 
position to discuss the propositions submitted. 

Very respectfully. 

C. J. Harris, 
G. W, Benge, 
Roach Young, 
Joseph Smallwood, 
CheroJcee Delegates. 



APPENDIX. 



Laws of the Cherokee Nation now in Force Rela- 
tive to Townsites. 



CHAPTER XIII, ARTICLE V. 

SETTLEMENT OF TOWNS AT RAILWAY STATIONS. 

Section 768. At each and every station along the 
line of any railroad passing through the land of the 
Cherokee Nation there shall be reserved to the Cherokee 
Nation one mile square, to include such station in such 
manner as may be deemed advisable by the commissioner 
hereafter authorized ; and said tract shall be laid o& into 
town lots, and sold at public sale to the highest bidder, 
who shall be a citizen of the Cherokee Nation, and who 
shall thereby acquire the same right?, and none other than 
those, of use and occupancy, in the same way, and to the 
same extent, as conferred by law upon purchasers of lots 
in the towns of Fort Gibson and Tahlequah ; jwovided^ 
that this act shall not be so construed as to interfere with 
any of the mineral resources of the public domain, or 
laws of the Cherokee Nation in relation thereto. 

CHAPTER XII, ARTICLE III. 

INCORPORATING THE TOWN OF FORT GIBSON AND DOWN- 

INGVILLE. 

Section 591. The town reservation of Fort Gibson, 
as defined by law, and the country thereto adjacent for a 
distance not to exceed one mile from the boundary thereof, 
for the purpose of this act, are hereby declared to be 
within the corporate limits of the town of Fort Gibson, 



18 

and the inhabitants, citizens of the Cherokee Nation, re- 
siding within the limits aforesaid of said town, be, and 
they are hereby constituted a body politic and corporate, 
by the name of ' ' Mayor and Town Council of the town 
of Fort Gibson," by which name they and their succes- 
sors luay sue and be sued, defend, and be defended, in all 
courts of law^, in all matters and actions whatsoever, and 
may grant, purchase, receive, and hold property of any 
description, within the limits proper of said town, and 
may have, sell, and dispose of the same for the benefit of 
the town, and may do all other acts the same as natural 
persons, not contrary to the constitution of the Cherokee 
Nation. 

Sec. 592. The corporate powers and duties of said 
town shall invest in one mayor and five members of the 
council, to be selected annually on the first Monday in 
December of each year, and to continue in ofiice till their 
successors are elected and qualified, according to this act ; 
and the said mayor and members of the council shall take 
an oath, before entering into office, to faithfully discharge 
their duties ; and all qualified electors of the Cherokee 
Nation, residing within the corporate limits of said town 
of Fort Gibson, shall be entitled to vote in the election of 
the mayor and council, and a majority of the votes thus 
cast at an election shall be necessary to a choice of such 
officers, and no person shall be chosen mayor, or member 
of the council of the town of Fort Gibson, who shall not 
be of lawful age, and an inhabitant of said town. 

Sec. 593. The mayor, or any member of the council 
that may be designated as such in the absence of the 
mayor, shall preside at the meetings of the town council, 
which shall be regulated by ordinance. He shall be the 
executive power of the said town of Fort Gibson and con- 
servator of the peace within the corporate limits thereof, 
and shall have full power and authority to do, and per- 



19 

form, all things which may he lawfully done by a judge 
of the district in criminal matters, in accordance with the 
powers and authority herein conferred upon him. 

Sec. 594. He shall l)e vested with full powers to en- 
force all ordinances passed by the council and approved 
by the mayor, or by the unanimous vote thereof, in case 
of his failure to approve the same within three days after 
the passage thereof and its presentation to him ; to assess 
all fines for a violation of said ordinances, not exceeding 
the sum of fifty dollars, and to issue executions for the 
collection of the same. In case of murder, the mayor 
may cause the arrest of the perpetrator, and cause him 
to be turned over to the sheriff' of the district for trial 
by any court having jurisdiction thereof ; but, in all other 
offenses, misdemeanors, and crimes, the mayor and town 
council may have authority to arraign, hear, and punish 
the same, as may be prescribed by the laws of the Chero- 
kee Nation, or the ordinances of said town ; provided, 
that they shall not have the power to inflict, without trial 
by jury, punishment hj stripes, or restrain a person of 
his liberty longer than two months. The said mayor and 
town council shall also have jurisdiction in determining 
rights to property, or the collection of debts, where the 
amount involved shall not exceed the sum of twenty- 
five dollars. 

Sec, 595. Any three members of the town council 
shall constitute a quorum tc transact business, but a less 
number may adjourn, from time to time, and compel the 
attendance of absent members in such manner as the 
council may prescribe. The members of the town council 
shall judge of the election, qualifications and returns of 
the mayor, and their own members, and determine rules 
for their own proceedings, which shall be recorded by the 
clerk of the town council in a journal to be kept for that 
purpose. 



20 

Sec 596. The town council of Fort Gibson shall have 
full power and authority to pass by-laws and ordinances 
to prevent, define and remove nuisances, to restrain and 
prohibit all disorderly houses and gaming, the introduc- 
tion and vending of intoxicating drinks ; to estal)lish and 
regulate a market ; to cause the streets to be opened, re- 
paired, and paved b}' the inhabitants and non-resident 
owners of houses, lots, and property in said town ; j>ro- 
vlded, the tax imposed on non-residents, for said purpose, 
be in exact proportion to an ad valorem tax imposed on 
all property belonging to residents in, and situated within, 
the corporate limits of said town of Fort Gibson ; to pro- 
vide for the prevention and extinguishment of fires ; to 
dig wells and erect pum})s for the convenience o^ the in- 
habitants ; to restrain all violence, obscenity, and disor- 
derly conduct, within the limits of the town ; to assess 
and collect fines for a violation of the ordinances, and to 
collect a tax for defraying the expenses of the town and 
the improvements thereof ; and generally, to pass such 
by-laws and ordinances for the regulation of the town as 
they may deem necessary, not contrary to the provisions 
of this act, or to the constitution of the Cherokee Nation. 
No tax shall be imposed by the town council of Fort 
Gibson, in any one year, on property within the town, at 
higher rate than one-half of one per centum on the assess- 
ment value of the same, unless two-thirds of the persons 
therein interested shall, by vote taken for that })urpo.se, 
authorize the same to be done. 

Sec. 597. In order to carry into effect the provisions 
of this act, the town council of Fort Gibson shall have 
authority to provide by ordinance for the appointment or 
election of one clerk, one constable, one assessor and col- 
lector of taxes, and such other officers as may be neces- 
sary ; prescribe their duties, fix their compensation, and 
remove them from office. It shall also have authority to 



RD 1 ^.8 



21 

select, lay oflf, enclose, hold, and regulate by purchase or 
otherwise, twenty acres as a cemetery, and may prohil)it 
the interment of bodies anywhere within the limits of said 
town. 

Sec. 598. The clerk of the town council shall attend the 
mayor's courts, issue all writs and summons and other 
necessary papers, keep a true, full, and correct record of- 
all arrests and trials, and of all town lots and ownership 
of the same. 

Sec. 599. The mayor and town council of the town of 
Fort Gibson shall cause to he made a re-survey of all that 
part of the original town not embraced within the military 
reserve. They shall in such re-survey retrace, as high as 
may be, the original streets and alleys, cause the streets 
to be re-opened, all obstructions to be removed therefrom, 
and all blocks and lots to be staked with stone, iron, or 
durable timber, and to be lettered and numl)ered accord- 
ing to range and number ; in consideration of which, 
every odd lot, the property of the Nation in such town 
reserve, shall be the property of the corporation of Fort 
Gibson, to be used for the benefit of such corporation. 

Sec. 600. All other lots, the property of the Nation, 
may be sold, from time to time, by order of the ma3'or, 
and for the benefit of the general fund of the Nation, in 
such manner as shall be ordered by the Principal Chief ; 
one -third the price bid for lots so sold, shall be paid at 
the time of sale, and the residue in two equal annual in- 
stallments. 

Sec. 601. Upon final payment for any lot, the mayor 
shall issue a recei})t in full to the purchaser, upon the })re- 
sentation of which the Principal (^.hief shall execute the 
necessary conveyance to the owner. Lots not paid for, 
as herein provided, shall revert to the Nation, without re- 
course for payments previously made thereon. 

Sec. 602. Writs for the arrest of persons, charged 



22 

with a violation of the ordinances of the town corpora- 
tion, may be served by the sheriff into whose district the 
person accused may have fled ; and such sheriff', so arrest- 
ing shall safely deliver the prisoner to the constable of 
the town, to be dealt with according to the ordinances of 
the same. 

Sec. 603. "The town of Downingville is likewise in- 
corporated under the same conditions, with the same 
rights, privileges and restrictions, as provided in the above 
act, incorporating the town of Fort Gibson." — (Novem- 
ber 27, 1873.) 

Sec. 604. " The towns of Chelsea, Chouteau and 
Claremore are herel)y incorporated under the same rights, 
provisions and restrictions as are provided in the act of 
the National Council, incorporating the town [of Fort 
Gibson." — (Decemlier 7, 1889.) 

Sec. 505. "The town of Webber's Falls, Canadian 
District, is likewise incorporated under the same condi- 
tions, with the same rights and privileges, and restrictions 
as provided in the act incorporating the towns of Fort 
Gibson and Downingville." — (December 5, 1885.) 

Sec. 606. The provisions of the act incorporating the 
towns of Fort Gibson and Downingville are hereby ex- 
tended to the town of Tahlequah. — (December 20, 1890.) 



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